Undermining National and International Law: The Expected Costs of Nuclear Treaty Termination

Louis Rene Beres

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land….

Article VI, US Constitution (The Supremacy Clause)

As revealed yet again with his proposed abrogation of the INF Treaty, Mr. Trump is dangerously unprepared for dealing with critically urgent strategic matters. Although we are now expected to believe that alleged Russian noncompliance concerning intermediate nuclear forces has somehow made it cost-effective for the US to summarily withdraw from a binding legal agreement, there is no evident logic to this argument. Indeed, to the extent that US abrogation would plausibly encourage further nuclear spread in other parts of the world, Mr. Trump’s latest seat-of-the pants policy prescription could backfire even more catastrophically than if it concerned “only” Russia.

There are corresponding jurisprudential issues here as well. Ipso facto, treaties entered into by the United States represent the “supreme law of the land.” This core codification at Article 6 of the US Constitution is authoritatively known as the “Supremacy Clause,” and prohibits a US president from unilaterally abrogating such law according to his own particular whims of the moment or to some entirely personal caprice. Although Mr. Trump still seems wholly unaware of the fact (an unawareness shared by his ritualistically chanting “rally” audiences), the US chief executive is not the only Constitutionally established branch of government.

Moreover, lest we forget, we still have a president, not a king.

A key question must now be raised again: can this particular president be expected to cope capably and honestly with pertinent and complex overlapping challenges of nuclear strategy and international law?

To reply, Mr. Trump’s analytic and jurisprudential debilities continue to be reasonably concerning. Such understandable apprehension becomes still more noteworthy when this President’s relevant shortcomings are: (1) considered as intersecting and reinforcing; (2) considered together with Mr. Trump’s persistent and willing subservience to the Russian president in the midst of “Cold War II”; and (3) assessed within the formal statutory and Constitutional parameters of US nuclear command authority.

In essence, some of the cumulative security risks America faces under its current president are potentially immediate and prospectively existential. More precisely, the principal risks to US and allied security are distressingly tangible and multi-sided. These risks could become especially high during any upcoming instances of competitive risk-taking with Vladimir Putin. These are instances when each side would be seeking some sort of necessary “escalation dominance.”

For such risks to generate an all-out war, including possibly even a nuclear war, is not difficult to imagine. After all, we live at a moment in history when certain seemingly minuscule escalatory misjudgments in Washington and/or Moscow could create sudden, staggering and potentially irreversible harms around the globe. To suitably “moderate” this perilous moment, Mr. Trump should first understand that world politics (1) are never properly analogous to the far narrower worlds of casino development or commercial real estate; and that authentic national security (2) can never be convincingly enhanced or rendered lawful by more-or-less artful deal making.

Going forward, President Trump must make himself much better informed about all potentially foreseeable nuclear conflict scenarios in our already anarchic or “Hobbesian” world political system. Correspondingly, both Congress and the general citizenry must keep a much closer and more diligently focused watch on Mr. Trump’s problematic willingness to take nuclear war with sufficient analytic seriousness. Among other things, he will need to be reminded that literally no scientifically accurate estimates of nuclear war probability are logically possible. This is because, in science, true probabilities must always be based upon a determinable frequency of pertinent past events; there has never been a nuclear war event.

Never.

The American atomic bombings of Hiroshima and Nagasaki in August 1945 “don’t count” as examples of nuclear war. Instead, these were singular episodes of nuclear attack launched upon enemy civilian populations in an otherwise conventional war. Accordingly, in any still-upcoming nuclear crisis situations, a casually dismissive presidential stance on expected outcomes could produce unexpected and/or intolerable results.

Quickly.

I have been studying nuclear warfare issues for fifty years. After four years at Princeton in the 1960s, long an intellectual center of American nuclear history and thought (recall Einstein and Oppenheimer), I first began to think about adding a modest personal contribution to the growing literature of first-generation nuclear thinkers. Already by the mid- 1970s, I was busily preparing a new manuscript on U.S. nuclear strategy and on certain corollary risks of nuclear war.

At that time, moreover, I was interested in very specific questions of presidential authority to order the use of American nuclear weapons.

Among other things, I soon learned that reliable safeguards had been carefully built into all American nuclear command/control decisions, but also that these reassuring safeguards could never apply at the critical presidential level. To a young strategic scholar, this ironic disjunction didn’t make any obvious sense, especially in a world where national leadership irrationality was hardly without precedent. For needed clarifications, I reached out to retired General Maxwell D. Taylor, a distinguished former Chairman of the Joint Chiefs of Staff.

In predictably rapid response to my query, General Taylor sent me a detailed handwritten reply. Dated 14 March 1976, the General’s informed letter concluded presciently: “As to those dangers arising from an irrational American president, the only protection is not to elect one.”

Until now, I had never really given any extended thought to this truthful but distressing response. I had assumed that somehow “the system” would always operate rather precisely according to plan. Today, as the increasingly discordant presidency of Donald Trump coincides with a North Korean nuclear standoff, continued Iranian nuclearization, and a casually-announced US-plan for INF Treaty abrogation, General Taylor’s 1976 warning takes on greater and possibly more conspicuous meaning. Now, however reluctantly, Americans must realistically assume that if President Trump were ever to exhibit unstable decision-making behavior, he could nonetheless order the use of American nuclear weapons, and plainly do so without any calculable expectations of official “disobedience.”

At this point, a core question should come immediately to mind. What should be done by the National Command Authority (Secretary of Defense, Chairman of the Joint Chiefs of Staff, National Security Advisor, and presumptively several others) if it should ever decide to oppose a determinably inappropriate presidential order to launch American nuclear weapons? Could the National Command Authority reliably “save the day” by acting in an impromptu or creatively ad hoc fashion? Or should there already be in place aptly credible and effective statutory measures to (1) meaningfully assess the ordering president’s reason and judgment; and (2) promptly countermand any wrongful order?

In law, Article 1 (Congressional) war-declaring expectations of the Constitution notwithstanding, any presidential order to use nuclear weapons, whether issued by an apparently irrational president, or by an otherwise incapacitated one, should be obeyed. To do otherwise, in such dire circumstances, would be prima facie illegal; that is, impermissible on its face. Additionally, President Trump could order the first use of American nuclear weapons even if the US were not under a specifically nuclear attack.

Here, too, a further strategic and legal distinction must be made between first use and first strike. There exists an elementary but vitally important difference, one that candidate Donald Trump had conspicuously failed to understand during his 2016 campaign debates. Among other things, this difference has to do with distinguishing elements of essential national self-defense from aggression.

Aggression, of course, is a codified crime under international law. It is, therefore, reciprocally prohibited by pertinent US law.

Where should American nuclear policy go from here? To begin, a coherent and comprehensive answer will need to be prepared for the following very basic question: If faced with any presidential order to use nuclear weapons, and not offered sufficiently appropriate corroborative evidence of any actually impending existential threat, would the National Command Authority: (1) be willing to disobey?, and (2) be capable of enforcing such seemingly well-founded expressions of authoritative disobedience?

In any such unprecedented nuclear crisis circumstances, all relevant decisions could have to be made in a compressively time-urgent context. Significantly, such excruciatingly tight chronological constraints could quickly become overriding.

The only time for Americans to prepare for such vital national security questions is now. This is the case whether or not President Donald Trump should incrementally prove himself to be an ostensibly stable and capable crisis decision-maker. Though we might draw a huge sigh of relief if the president’s most recent treaty-abrogation bravado vis-à-vis Moscow were to subside, there will inevitably arise other similar or even more portentous “atomic” emergencies. To respond purposefully, as needed, the US and certain of its allies will then require more than a purely stream-of-consciousness or seat-of-the-pants prescription from the White House.

Much more.

There is one last but still important point. Whether it is in reference to a proposed military intervention or to another considered military action, the American president is bound not only by US law, but also by international law. The latter, which is discoverable in various customary norms as well as in bilateral and multilateral treaties, is always an integral part of American law. Such “incorporation” is most prominently expressed at Article 6 of the US Constitution (the “Supremacy Clause”), but also at various unambiguously major US Supreme Court decisions.

Looking ahead, Donald Trump’s policies for dealing with any and all adversarial nuclear threats must remain fully consistent with American military requirements and also with all corollary jurisprudential obligations. Striking the necessary and optimal balance between both coinciding imperatives will confront this president with certain stark intellectual and ethical dilemmas. For now, at least, it does not appear likely that he will be able to satisfactorily meet such bewildering and overlapping challenges.

There is more. In further sustaining a system of mutual nuclear deterrence, even under the most optimal assumptions of a common rationality, both President Trump and President Putin would have to concern themselves with all possible miscalculations, errors in information, unauthorized uses of strategic weapons, mechanical or computer malfunctions, and myriad assorted nuances of cyber-defense/cyber-war. In other words, even if both President Trump and President Putin were abundantly capable, humane and focused – a generous assumption, to be sure – areas of confrontation could still descend rapidly toward some form or other of genuine nuclear conflict.

It is also reasonable to expect that the corresponding erasure of a once-prevailing nuclear taboo could substantially heighten the likelihood of catastrophic nuclear engagements in certain other parts of the globe, most plausibly in North/South Korea, southwest Asia (Pakistan and India), and/or the Middle East (Israel and Iran). Regarding this last dyad of possible nuclear conflict, such an engagement could ensue even in the absence of a bilateral nuclear capacity; in other words, even before Iran were itself to become recognizably nuclear.

When Pericles delivered his famous Funeral Oration, it was to express confidence in an ultimate victory for Athens. Simultaneously, as recalled by Thucydides, the Greek historian of the Peloponnesian War (431 – 404 BCE), Pericles had also expressed various deep fears about self-imposed setbacks along the way. “What I fear more than the strategies of our enemies,” lamented Pericles, “is our own mistakes.”

Today, as President Trump must finally go far beyond purely unhelpful expressions of self-praise, the expected consequences of any American misunderstandings or miscalculations could prove incalculably destructive to the United States. It follows, inter alia, that in choosing a future style of negotiation and possible escalation with Moscow, the United States must become appropriately wary of locking in to any unwanted patterns of interaction for which the other side’s reaction could prove deeply and irremediably harmful to this country. Even more precisely, Mr. Trump and his counselors will have to vigilantly refrain from any provocation for which the Russian “Cold War II” adversary might then have only one anticipated response: launching a nuclear war.

Nuclear strategy is not for amateurs. As a preeminently intellectual activity, the American president must now do whatever possible to avoid exacerbating an already-expanding nuclear arms race between the superpowers. At the same time, he must maintain a complete awareness that US strategic interests are usefully reinforced by pertinent international law, and that American national security obligations are best satisfied by continuing US support of still-relevant treaties.

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.

His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear

This article was first published in JURIST